[Federal Register Volume 87, Number 249 (Thursday, December 29, 2022)]
[Notices]
[Pages 80254-80256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28282]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0035]


Qualification of Drivers; Exemption Applications; Hearing

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt 18 individuals from the 
hearing requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs) to operate a commercial motor vehicle (CMV) in interstate 
commerce. The exemptions enable these hard of hearing and deaf 
individuals to operate CMVs in interstate commerce.

DATES: The exemptions were applicable on December 22, 2022. The 
exemptions expire on December 22, 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, 
Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room
    W64-224, Washington, DC 20590-0001, (202) 366-4001, 
[email protected]. Office hours are from 8:30 a.m. to 5 p.m. ET 
Monday through Friday, except Federal holidays. If you have questions 
regarding viewing or submitting material to the docket, contact Dockets 
Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Viewing Comments

    To view comments, go to www.regulations.gov. Insert the docket 
number (FMCSA-2022-0035) in the keyword box and click ``Search.'' Next, 
sort the results by ``Posted (Newer-Older),'' choose the first notice 
listed, and click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. 
ET Monday through Friday, except Federal holidays. To be sure someone 
is there to help you, please call (202) 366-9317 or (202) 366-9826 
before visiting Dockets Operations.

B. Privacy Act

    In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments 
from the public on the exemption requests. DOT posts these comments, 
without edit, including any personal

[[Page 80255]]

information the commenter provides, to www.regulations.gov. As 
described in the system of records notice DOT/ALL 14 (Federal Docket 
Management System (FDMS)), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the name of the submitter.

II. Background

    On August 17, 2022, FMCSA published a notice announcing receipt of 
applications from 18 individuals requesting an exemption from the 
hearing requirement in 49 CFR 391.41(b)(11) to operate a CMV in 
interstate commerce and requested comments from the public (87 FR 
50690). The public comment period ended on September 16, 2022, and 
three comments were received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting exemptions to these individuals would likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved by complying with Sec.  391.41(b)(11).
    The physical qualification standard for drivers regarding hearing 
found in Sec.  391.41(b)(11) states that a person is physically 
qualified to drive a CMV if that person first perceives a forced 
whispered voice in the better ear at not less than 5 feet with or 
without the use of a hearing aid or, if tested by use of an audiometric 
device, does not have an average hearing loss in the better ear greater 
than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a 
hearing aid when the audiometric device is calibrated to American 
National Standard (formerly ASA Standard) Z24.5--1951.
    This standard was adopted in 1970 and was revised in 1971 to allow 
drivers to be qualified under this standard while wearing a hearing aid 
(35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), 
respectively).

III. Discussion of Comments

    FMCSA received three comments in this proceeding. One commenter 
stated that Mr. Hagop Balian's name was spelled incorrectly in the 
notice published on August 17, 2022 (87 FR 50690). The spelling of Mr. 
Balian's name has been corrected in this notice exempting him from the 
hearing standard in Sec.  391.41(b)(11).
    The Commercial Vehicle Training Association's (CVTA) comment did 
not address any of the applications before the Agency in docket number 
FMCSA-2022-0035. Instead, CVTA stated that ``without a comprehensive 
understanding of the Agency's reasoning behind providing certain 
exemptions and additional research on the subject, our members are not 
able to provide a consistent standard without sacrificing safety or 
opening themselves up to liability.''
    CVTA also stated that ``not enough research has been made available 
to the public on this matter and the Agency has not been transparent 
with their standards of how exemptions are granted or extended.'' It 
requested additional research, public data, and guidance on this 
matter. CVTA noted that the Agency's recent decisions to renew some 
exemptions ``were based `on their merits.''' CVTA continued that in 
``order for an agency's assessment to not run afoul of the `arbitrary 
and capricious' standard for judicial review set forth by the 
Administrative Procedure Act (APA), the Agency must engage in reasoned 
decision making by examining the relevant data and articulating a 
satisfactory explanation for its action. Further, there must be a 
rational connection between the facts found and the choice made. CVTA 
does not believe that FMCSA has satisfied this standard.''
    CVTA also stated that ``FMCSA provided little to no relevant data 
other than noting that they `searched for crash and violation data' and 
`driving records from the State Driver's Licensing Agency' when making 
the decision.'' CVTA continued that it understood this database has 
never been a factor in determining whether a hearing-impaired 
commercial driver's license (CDL) driver meets the medical fitness 
examination required by the FMSCRs to operate a CMV. CVTA stated that 
the ``Agency did not articulate a satisfactory explanation of why this 
data was relevant when determining if this exemption would likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved absent such exemption.''
    In addition, CVTA stated that it ``does not feel the statutory 
requirements have been met by the extension of these exemptions, there 
has been a lack of transparency in the decision making, and the 
regulation has not been articulated in a way that can produce a 
reliable and consistent standard our members can rely on when making 
accommodations.'' Finally, CVTA stated it ``cannot support this rule 
without additional research, data, and an articulated explanation on 
the subject that can be consistently employed throughout the 
industry.''
    The last comment received on the August 17, 2022, notice opposes 
CVTA's comment and supports the issuance of the exemptions.

FMCSA Response

    CVTA in essence is renewing the global comments relating to the 
standards and bases FMCSA uses in determining whether to grant 
exemptions from the hearing standards that it provided on October 21, 
2015, in response to a Federal Register notice announcing applications 
for exemptions from the hearing requirement in the FMCSRs. FMCSA has 
already responded to and addressed those comments in a Federal Register 
notice on December 29, 2017 (82 FR 61809). FMCSA has no basis for 
reconsidering its treatment of the matters raised previously by CVTA.
    FMCSA acknowledges CVTA's concerns about the challenges driver 
training schools may experience delivering services for hearing 
impaired drivers. The Agency's decision regarding exemption 
applications is based on relevant medical information and literature 
indicating whether a licensed driver with the medical condition could 
operate safely, as well as the specific bases discussed in the December 
2017 Federal Register notice (82 FR 61809). FMCSA also considers its 
experience with hearing exemption holders. The information obtained 
from each applicant's driving record provides the Agency with details 
regarding any moving violations or reported crash data, which 
demonstrates whether the driver has a safe driving history and is used 
as an indicator of future driving performance. This information assists 
the Agency in determining whether these drivers pose a risk to public 
safety and if granting these exemptions would likely achieve a level of 
safety that is equivalent to, or greater than, the level that would be 
achieved absent such exemption.
    CVTA has not provided any data showing that drivers who are hard of 
hearing or deaf are at increased crash risk. The Agency's decision to 
exercise its discretion and grant the exemptions is not arbitrary or 
capricious nor does it fail to meet the statutory standard. Therefore, 
the Agency will continue to consider each application for a hearing 
exemption on an individual basis and will continue exempting those 
drivers who do not pose a risk to public safety when granting the 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption.
    In granting these exemptions, FMCSA focuses on whether these 
individuals can safely operate a CMV in interstate commerce. Matters 
concerning the training of deaf or hard of hearing

[[Page 80256]]

individuals to operate CMVs are beyond the scope of the medical 
exemptions being granted and are not evidence that FMCSA should no 
longer grant exemptions from its hearing standard. FMCSA notes there 
are CDL training schools that have successfully trained deaf and hard 
of hearing drivers and State driver's licensing agencies have found 
ways to conduct CDL skills tests for such individuals. FMCSA believes 
that it is not necessary for FMCSA to ``provide a consistent standard'' 
for training and testing activities when considering an application for 
an exemption from the hearing standard.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption 
from the FMCSRs for no longer than a 5-year period if it finds such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption. The statutes allow the Agency to renew exemptions at the end 
of the 5-year period. However, FMCSA grants medical exemptions from the 
FMCSRs for a 2-year period to align with the maximum duration of a 
driver's medical certification.
    The Agency's decision regarding these exemption applications is 
based on relevant medical information and literature, and the 2008 
Evidence Report, ``Executive Summary on Hearing, Vestibular Function 
and Commercial Motor Driving Safety.'' The evidence report reached two 
conclusions regarding the matter of hearing loss and CMV driver safety: 
(1) no studies that examined the relationship between hearing loss and 
crash risk exclusively among CMV drivers were identified; and (2) 
evidence from studies of the private driver's license holder population 
does not support the contention that individuals with hearing 
impairment are at an increased risk for a crash. In addition, the 
Agency reviewed each applicant's driving record found in the Commercial 
Driver's License Information System, for CDL holders, and inspections 
recorded in the Motor Carrier Management Information System. For non-
CDL holders, the Agency reviewed the driving records from the State 
Driver's Licensing Agency. Each applicant's record demonstrated a safe 
driving history. Based on an individual assessment of each applicant 
that focused on whether an equal or greater level of safety would 
likely be achieved by permitting each of these drivers to drive in 
interstate commerce, the Agency finds the drivers granted this 
exemption have demonstrated that they do not pose a risk to public 
safety. Consequently, FMCSA finds further that in each case exempting 
these applicants from the hearing standard in Sec.  391.41(b)(11) would 
likely achieve a level of safety that is equal to that existing without 
the exemption, consistent with the applicable standard in 49 U.S.C. 
31315(b)(1).

V. Conditions and Requirements

    The terms and conditions of the exemption are provided to the 
applicants in the exemption document and include the following: (1) 
each driver must report any crashes or accidents as defined in Sec.  
390.5T; (2) each driver must report all citations and convictions for 
disqualifying offenses under 49 CFR parts 383 and 391 to FMCSA; and (3) 
each driver is prohibited from operating a motorcoach or bus with 
passengers in interstate commerce. The driver must also have a copy of 
the exemption when driving, for presentation to a duly authorized 
Federal, State, or local enforcement official. In addition, the 
exemption does not exempt the individual from meeting the applicable 
CDL testing requirements.

VI. Preemption

    During the period the exemption is in effect, no State shall 
enforce any law or regulation that conflicts with this exemption with 
respect to a person operating under the exemption.

VII. Conclusion

    Based upon its evaluation of the 18 exemption applications, FMCSA 
exempts the following drivers from the hearing standard in Sec.  
391.41(b)(11), subject to the requirements cited above:

Stephen Arellano (CO)
Hagop Balian (MD)
Michael Clark (MD)
Jeremy Earl (IL)
James Hall (MS)
Arnold Heyen (NE)
Omar Ibrahim (MN)
Majuong Koijza (CO)
Peter Mannella (WA)
Jay Manns (PA)
Matthew Moyer (PA)
Ismail Muse (UT)
Dax Nutt (TX)
Michael Piirainen (ME)
Jeremy Stockman (KS)
Zander Symansky (KS)
Dalton Taylor (OK)
Jorge Toledo (FL)

    In accordance with 49 U.S.C. 31315(b), each exemption will be valid 
for 2 years from the effective date unless revoked earlier by FMCSA. 
The exemption will be revoked if the following occurs: (1) the person 
fails to comply with the terms and conditions of the exemption; (2) the 
exemption has resulted in a lower level of safety than was maintained 
prior to being granted; or (3) continuation of the exemption would not 
be consistent with the goals and objectives of 49 U.S.C. 31136, 49 
U.S.C. chapter 313, or the FMCSRs.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2022-28282 Filed 12-28-22; 8:45 am]
BILLING CODE 4910-EX-P


